IS REGULATION OF OTT PLATFORMS A THREAT TO FREE SPEECH?
Author: Madhura Mohan Nikalje, LL.M., Advocate at the Delhi High Court
In 2020, India had nearly 700 million people with access to the internet. The number of OTT platform users has increased by over 30% in the second quarter of 2020. It’s the more convenient option after all, since we have our phones with us, all the time. The biggest perk for me was the fact that I could watch an uncensored version of content and had the freedom to censor things from my mind, as and when I liked. There are certain limitations when it comes to uncensored content, such as extremely violent scenes, use of abusive language and sexually explicit visuals. To address these concerns the government is now determined to bring in new regulations to regulate OTT content. Several questions will accompany such a regulation, for instance, to whom will this regulation apply? Will there be a special body to assess and censor online content? Most importantly, what about freedom of speech and expression? This blog aims to throw some light on the challenges that both viewers and content creators might have in exercising the right to free speech and expression in the wake of the new regulation.
Prior to the Regulation
The need for regulation was felt because there was no specific law to govern the OTT platform content but does this mean that there were no rules at all? Negative. Certain regulations relating to censorship were present. For instance, under S.293 of Indian Penal Code, anybody who has been indulged in the selling or distribution of work of literature which is obscene would be sentenced to imprisonment up to seven years. Outraging religious sentiments which are intentional and done maliciously was punishable under section 295A. One could also be held liable for defamation under section 499.
Apart from IPC, Ss. 67A, 67B and 67C of the Information Technology Act, 2000 provide for the penalty which may include imprisonment to be imposed on anybody who has transmitted or published any kind of obscene material, any sexually explicit material including those where children are depicted in sexual acts. And then there is the grundnorm, the Constitution which provides for freedom of speech and expression under Art.19(1)(a) but also imposes reasonable restrictions under Art. 19(2).
Regulation and Self-regulation
Ever noticed the Censor Board Certification before watching a movie? Did you know that it is a mandatory requirement to be met with before the movie is released? The primary legislation in this respect is the Cinematograph Act, 1952. The 1952 Act was enacted to provide for the certification of cinematograph films for exhibition and for regulating their exhibition. Self-regulatory bodies like the Press Council and the News Broadcasters Association govern the Television and print media. TV programming comes under the purview of the Cable Networks Regulation Act.
In 2019, a few of the OTT platforms such as Netflix, Amazon Prime, etc., signed a Self-regulation code, ‘Code of Best Practices for Online Curated Content Providers’. It categorically stated that the signatories will ensure that they do not ‘deliberately and maliciously’ make available the following categories of content through their services to users:
· Content disrespecting the national emblem or national flag;
· Content representing child pornography;
· Content intending to outrage religious sentiments of any class, section or community;
· Content promoting or encouraging terrorism;
· Content that has been banned for exhibition or distribution by online video service under applicable laws.
This self-regulatory code also provided for complaints redressal by the internal appointment of a dedicated person or team or department to receive and address any consumer-related concerns or complaints related to the content of the respective providers.
In August 2019, the Karnataka High Court rejected a petition seeking regulation under the Cinematograph Act of online content. The court observed that unlike a traditional screening of the movie, online streaming is based on the “requests by user” and therefore it will not fall under the purview of Cinematograph Act.
In October 2020, a similar petition was presented before the Apex Court seeking regulation of content on OTT platforms. The matter is sub-judice. Although the OTT platforms had signed a self-regulation code, the government did not deem it sufficient. In November 2020, the Government of India (Allocation of Business) Rules, 1961 ("Rules") were amended to create a new sub-heading VA in the second schedule, titled "Digital/Online Online Media" and containing the following entries: ‘films and audio-visual programmes made available by online content providers’; and ‘news and current affairs content on online platforms’. Under this notification, the MIB will now have the power to regulate OTT platforms.
Indian Judiciary and their interpretation of Content Regulation
The fear that engulfed all content creators and viewers was the fear of censorship since censorship is not new to India and viewers have been deprived of many movies because the censor board did not deem it fit. The Censor Board has banned 793 films in 16 years.Water, Udta Punjab and Lipstick Under My Burkha, are some of the films that were restrained by Censor Board, citing the reason of ‘public interest’.
K.A. Abbas v. Union of India was one of the first cases to deal with censorship. The Constitutional bench of the Supreme Court held that “censorship of films including prior restraint is justified under the Constitution.” The court observed that “A person reading a book or other writing or bearing a speech or viewing a painting or sculpture is not so deeply stirred as by seeing a motion picture.”
With the advent of the internet and increase in use of OTT platforms, the need for regulation of content created therein surfaced. In the case of Justice for Rights Foundation v. Union of India the Delhi High Court observed that if the internet is misused to disseminate information impermissible under the law then the provisions of the Information Technology Act provides for deterrent action to be taken.
Freedom of speech v. Censorship
Freedom of speech and expression is a fundamental right recognised by both the domestic and international community. The first concern in the case of regulation of OTT platforms will be the violation of the right to freedom of speech and expression. At the same time, should we allow any kind of content to be aired without appropriate checks? Art.19(2) provides for reasonable restrictions including defamatory content, information that would threaten the sovereignty and integrity of the nation, strain foreign relations etc.
Free speech cannot be given a black and white approach. It changes and evolves with time. The topic of homosexuality, for instance, was considered a taboo a few decades ago but now it’s being spoken about, portrayed in movies and books and there is a certain level of acceptance when it comes to at least listening about it.
The Supreme Court  has held that the social interest of people overrides individual freedom. It thus justified the censorship of films on the basis that it is a powerful medium of expression. However, the Supreme Court also recognised that it is crucial to set a standard for censors to ensure artistic freedom, thus leaving a vast possibility and opportunity for creativity.
In May 2020, Delhi High Court observed that the term ‘restriction’ used in Art.19 is preceded by the word ‘reasonable’. “Reasonability of a restriction is used in a qualitative, quantitative and relative sense.” The Supreme Court in the case of AnuradhaBhasin v. Union of India & Ors., has observed that the authorities must follow the doctrine of proportionality before restricting fundamental rights. The possible goal must be determined and it must be ensured that the goal is legitimate. Most importantly, before resorting to restriction of fundamental rights, the authorities must “assess the existence of any alternative mechanism in furtherance of the aforesaid goal.”
Hence, it is imperative that in the garb of regulation of OTT, fundamental rights are not violated.
United States of America
In the USA, the OTT platforms have not been definitively addressed by the Federal Communications Commission. The FCC previously proposed to classify such providers as ‘multichannel video programming distributors’ MVDPs, subjecting them to a few rules that apply to cable and satellite providers. However, at the moment the OTT platforms are unregulated.
As of today, there is no particular regulation to regulate the OTT content in the UK and the OTT platforms are governed by EU Electronic Communications Code (EECC). EECC was initially limited only to mobile or strict networks but now it has been extended to include OTT platforms as well.  Secondly, recently, the UK has announced that a new regulatory framework to be set out in a new Online Safety Bill to strengthen online security in response to the Online Harms White Paper Consultation. According to this proposed framework social media platforms such as Facebook, TikTok will be required to remove and limit the spread of content that contains child sexual abuse, terrorist material or suicide. Moreover, Ofcom, if companies fail to stop illegal and harmful content from reaching their online users' fines of up to £18m, or 10% of global revenue (whichever is higher), may be imposed.
Singapore is quite straight forward with their approach to regulating OTT content. Infocomm Media Development Authority (IMDA), in 2018 issued a code according to which the OTT platform will have to rate the content available on their platform the same way offline movies are rated. Parental lock and age verification are some of the key elements of this code. The IMDA with three ISPs in Singapore to provide family access networks (FANs). FANs will assist parents who may be unfamiliar with filtering software to exclude pornographic and other undesirable content. In a country like India, such technology coupled with some hands-on experience will certainly be useful to keep minors at a safe distance from harmful content.
Food for thought
Regulation of OTT content will bring in some uniformity and level playing among content creators. However, at the same time, it must be ensured that in the garb of regulation, the viewers are not being deprived of good content and the content creators’ right to free speech is not curtailed. A concern that has surfaced with the announcement of the impending regulation is whether there will be an independent body to assess the kind of content that has to be censored and if yes, who will be the members of such a body? In summation, India needs some regulation of OTT platforms but this upcoming regulation will uphold free speech or curtail it; only time will tell.
Padmanabh Shankar vs Union Of India WP No.6050 OF 2019 (C) PIL Karnataka High Court
ShashankShekharJha v. Union Of India WPC 1080/2020 SC
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 Supra footnote 8
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KA Abbas v. Union of India, AIR 1971 SC 481.
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 The Office of Communications, commonly known as Ofcom, is the government-approved regulatory and competition authority for the broadcasting, telecommunications and postal industries of the United Kingdom.
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Madhura Mohan Nikalje is a practising advocate at the Delhi High Court. She completed her BBA., LL.B. from JSS Law College, Mysuru where secured second rank. She completed her LLM in 2019 from Amity Law School and secured a gold medal for her academic performance. Her areas of interest include Constitutional law, Privacy law and taxation.